The Supreme Court’s decision last week in R. v. Van, 2009 SCC 22, was a deeply divided one: the first 5-4 split of the Supreme Court since Justice Cromwell joined the bench. This post will concern itself with the majority opinion in the case.

The facts are as follows: the complainant was stabbed, robbed, and left to die in his apartment, but survived, and identified Mr. Van as the attacker. At trial, Van claimed that the complainant was lying and that loan sharks were actually responsible for the attack. He supported this argument with the testimony of a police officer who outlined the police’s procedure following the attack (including their initial suspicion that the complainant was, in fact, stabbed by loan sharks). During his testimony, that police officer made several statements that were either hearsay evidence or opinion evidence. The judge did not warn the jury to exclude this evidence when making their decision. Mr. Van was found guilty of attempted murder and robbery, but his charges were overturned by the Ontario Court of Appeal.
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President Obama Announces His Nominee

Just two weeks ago for TheCourt.ca, and by way of a review of the outstanding biography Judging Bertha Wilson: Law as Large as Life, I articulated my defence of President Obama’s declaration to replace retired U.S. Supreme Court Justice David Souter with an “empathetic” person. Less than one week ago, the President confirmed that which many judicial observers had long predicted - Justice Sonia Sotomayor of the Court of Appeals for the Second Circuit would be nominated to fill the vacancy. She would be only the third woman and first Hispanic justice so situated, though she must endure a gruelling confirmation process as political vetters comb her judicial and personal history to assess her qualifications, credibility, and - yes - “empathy”.

Navigating the U.S. Supreme Court’s “Liberal” and “Conservative” Blocs

Nominations to the U.S. Supreme Court, unlike our Supreme Court of Canada, are almost always contentious. One reason is that several high court justices in the U.S. have assumed predictable (at times, overtly political) approaches to constitutional interpretation, so much so that two ideological blocs emerge in many of their most sensitive cases, particularly those involving social issues. Former Justice Souter, as well as Justices Stevens, Ginsburg, and Breyer may be said (very crudely) to have ascribed to a “liberal” interpretive philosophy, which demonstrates greater willingness to check legislative power by recognizing evolving conceptions of rights. The other five justices form a tenuous “conservative” majority on the court, with one justice - Anthony Kennedy - occasionally and errantly siding with the minority in a few key areas (including abortion and same-sex rights).  Any appointment to the U.S. Supreme Court, then, carries with it far-reaching implications because the composition of these voting blocs may be altered, depending on the ideologies of the outgoing and incoming justices.

While it may be premature to forecast the interpretive approach that Justice Sotomayor will adopt if and when her nomination is confirmed - indeed, Souter was appointed by a Republican president in hopes that his approach would accord with that of the more traditionally “conservative” justices - her record suggests that it may be a more reliably “liberal” one. That fact has not gone unnoticed by some Republican commentators who, looking to buttress their tenuous circumstance, have waylaid disparaging accusations against Justice Sotomayor in efforts to impeach her character - accusations which, even in this tense judicial climate, seem extreme. Specifically, flamboyant radio personality Rush Limbaugh and former Speaker of the House Newt Gingrich identify a parsed sentence from one of Sotomayor’s 2001 speeches as revealing her true sensibility.

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The pirated DVDs? The fake Coach purse? The imitation I-Pod? Hide them. Burn them. Throw them away. Courts have brought the full wrath of law on those dealing in counterfeit goods in the form on substantial damage awards. Starting with Microsoft Corp v. 9038-3746 Quebec Inc., 2006 FC 1509, all the way to the most recent decision in Microsoft Corp. v. PC Village Co. Ltd, 2009 FC 401, the courts have been trending towards awarding maximum damages for cases dealing with counterfeit goods as per the Copyright Act.

2006 - Microsoft Corp. v. 9038-3746 Quebec Inc.
This 2006 Federal court decision was noteworthy mainly due to the statutory damages awarded under the Copyright Act and punitive damages. The courts considered the extent to which the defendants acted knowingly as well as the credibility of defendants when establishing statutory damages and personal liability. They determined that

knowledge, or lack thereof, has a considerable bearing on the personal liability of the two individual defendants who are, or were, directors of the corporate defendants and on the scope of the wide-ranging injunction, statutory damages, punitive damages and other remedies sought by Microsoft.

The defendants were deemed to be “liar and a scofflaw”, thus undermining their credibility.

Taking the above factors into consideration, the courts awarded the maximum amount of statutory damages available - $20,000 for each infringement - for the first time by Canadian courts. s38.1(5) of the Copyright Act explicitly sets out the test that gives the courts discretion to consider all relevant factors, including:

(a) the good faith or bad faith of the defendant
(b) the conduct of the parties before and during the proceedings; and
(c) the need to deter other infringements of the copyright in question.

The courts awarded statutory damages of $500,000 ($20,000 for each of the 25 works in question) $20,000 for each of the 25 infringements in question. The court concluded:

the defendants have acted in bad faith. Their conduct both before and during these proceedings has been dismissive of law and order, their failure to provide appropriate records, despite court order, demonstrates the necessity of deterring other infringements of the copyrights in question.

In addition to the statutory damages, the courts awarded $200,000 in punitive damages.

The $700,000 in damages drives home the point that any infringers of the Copyright Act will be liable for substantial damages, acting as a deterrent for future potential infringers.

2007 - Louis Vuitton Malletier S.A. v. Yang
The courts in Louis Vuitton v. Yang, 2007 FC 1179 reinforced the decision in Microsoft Corp. v. 9038-3746 Quebec Inc. The courts awarded the maximum damages of $20,000 for each infringement, to a total of $40,000, because of the conduct of the defendant. The courts determined that the defendant acted in bad faith by continuing to engage in infringing activities when repeatedly advised to desist, and found that the higher award was “necessary to deter future infringement and… to deter open disrespect for Canada’s copyright protection laws.”

Furthermore, the courts awarded punitive damages of $100,000, consistent with the decision in Microsoft v. 9038-3746 Quebec Inc., bringing the total award of damages to $263,699.14. The significant damages reiterated the sentiments of Microsoft Corp v. 9038-4736 Quebec Inc., acting as a new warning to counterfeiters everywhere.

2008 - Louis Vuitton Malletier S.A. v. 486353 B.C. Ltd.
In the 2008 decision of Louis Vuitton v. 486353 BC Ltd., 2008 BCSC 799, following the $700,000 payout in Microsoft Corp. v. 9038-3746 Quebec Inc., the Federal Court went a step further and awarded over $980,000 in damages – the highest amount ever awarded in a counterfeit goods case in Canada.

The defendants included two corporations and four individuals who were operating stores that were selling counterfeit Louis Vuitton merchandise. The courts awarded $20,000 damages per infringement, as well as $300,000 of punitive damages against the other defendants.

2009 - Microsoft Corp. v. PC Village Co. Ltd
The most recent decision in 2009 utilized the factors set out in the Louis Vuitton cases as well as the decision in Microsoft Corp v. 9038-3746 Quebec Inc., in accordance with section 38.1(5) of the Copyright Act, awarded statutory damages of $10,000 per infringement. The defendants were jointly and severally liable for the $50,000.00 punitive award and $50,000.00 in costs, for a total of $250,000.00.

The decisions above set out a useful precedent for intellectual property owners in the war against counterfeiters, and serve as a deterrent for current and future infringers by clearly defining the consequences of their actions. They establish that courts will show no leniency in copyright infringement cases, and those insisting on violating copyright laws need to be prepared to face substantial costs and damages. These decisions send a message out to counterfeiters to desist or face the financial consequences. The courts have made a stand against piracy of any sort. Now all that’s left to do is to spread the message, and wait for the impact of this stand in the real world.

Although the subject matter of sentencing is usually considered a dry one to discuss, the Supreme Court’s recent decision in R. v. Middleton, 2009 SCC 21, is worth addressing briefly here at The Court.

The issue in Middleton was that of whether an intermittent sentence and a conditional sentence can co-exist. Intermittent sentences are brief sentences of imprisonment (not exceeding ninety days, under s. 732(1) of the Criminal Code) where the term of the sentence need not be served entirely consecutively - i.e., every day of the sentence all in a row. It is usually reserved for minor offenses where a justice wishes to impress upon an offender the seriousness of a given offence, but does not wish to greatly disrupt the offender’s life for whatever reason (familial obligations, to name one of the more regular explanations).

By contrast, conditional sentences are sentences where punishment (or the lack thereof) is conditional on certain actions and behaviours undertaken by the offender as ordered by the justice. For example, attendance at rehabilitory functions/meetings, such as drug counselling or psychological therapy, is one of the more common conditions imposed by a justice in order for the offender to avoid imprisonment. Should they not abide by those conditions, their sentence will then revert to imprisonment.
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The Right to Picket Meets the Remedy of Trespass

As Osgoode Hall law students celebrate a relatively expedient end to their academic year, many of their colleagues at York University still traipse its hallways to recoup study time lost due to the recent labour disruption on campus. The CUPE 3903 strike, while a controversial response to an unfortunate situation, rather fortuitously reinvigorates debate surrounding an owner’s “right to exclude” – that without which property would not be – with respect to universities. Could the state, in a far-reaching and politically unsupportable gesture, have enforced trespass laws against the picketers? Further, could the York administration, which maintains that its campuses are private property with such signs bearing the slogan “University Regulations in Effect”, have lawfully enforced its own penal sanctions against the picketers?

Many issues are raised in considering these questions. The base principle is that owners have an enforceable right to exclude anyone and everyone, including picketers, from access to and use of their private property. That right is tempered, of course, by the picketers’ Charter freedoms of expression and assembly, in addition to various protections of workers’ rights, laws prohibiting discrimination in allowing access to property, and landlord-tenant regulations governing relationships between the York administration and picketers also residing on campus. With such a complicated interplay of interests arising in contemporary labour disputes, we may benefit by a review of the relevant case law as it may apply to CUPE 3903.

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Facebook – the quintessential communication portal. Many people spend numerous hours messaging, writing on walls, and taking quizzes on Facebook. But what is the impact of Facebook on our judicial system? Ideas of privacy, admissibility of evidence, and other issues rise up with the advent of a new era of utilizing Facebook as evidence, as seen in recent cases.

With more than 140 million users worldwide, Facebook is playing an increasing role in people’s lives. It is not just a teen fad: users over 25 make up its fastest growing demographic. Other social networking websites such as Myspace, Twitter, Flickr and others act as competitors of Facebook, offering similar services and encountering the same obstacles - namely privacy.

Its not unlikely that most of our esteemed readers have an account set up in one or more of these websites that prominently display personal information including name, birthday, sex, political views, and pictures. Of course, many have set up limited profiles, thus allowing them to choose to whom they wish to provide this personal information. But are they secure in their supposedly “limited” profile, or can this privacy be overturned by the need for litigants to access information relevant to a case?

Unfortunately, for the general public (and possibly fortunately for their lawyers), the Canadian courts have tended to overlook privacy granting access to private information for the purpose of litigation. Canadian courts have thus far determined that the content of web-based networking sites are “documents” and have to be disclosed if relevant to the case. Technology has developed, and so the courts must adapt to the changing world.
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The Supreme Court heard arguments in the case of R. v. Suberu (previously heard in the Ontario Court of Appeal, (2007), 85 O.R. (3d) 127) in April of 2008 - over thirteen months ago. Although the public generally accepts and tolerates the simple truth that the Supreme Court is a very busy institution, at this point the delay in reaching a final verdict in this matter should be considered extreme. The delay is all the more troubling considering that it concerns a matter the Supreme Court itself previously acknowledged would one day be something the SCC would need to revisit.

Suberu concerns the right of an individual detained (but not arrested) by police and when that detention triggers the right to counsel under s.10(b) of the Charter. The section states that “on arrest or detention”, everyone has the right “to retain and instruct counsel without delay and to be informed of that right.”(emphasis added)

Mr. Suberu and an accomplice obtained a stolen credit card which they used to purchase LCBO gift certificates, then attempted to use the $100 gift certificate to buy a $3 bottle of beer. The LCBO employees became suspicious and called the police without the appellants’ knowledge. When the constable arrived, he briefly detained the appellants and asked them some questions. It quickly became obvious to the officer that the appellants were the individuals responsible for the use of LCBO certificates (among other items) paid for with a stolen credit card, and he arrested them for fraud.
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Introducing Justice Wilson

As anticipation mounts surrounding President Obama’s potential replacement of retiring U.S. Supreme Court Justice David Souter with a female or minority candidate, we have cause to reflect on the increasing diversity of the Canadian judiciary, and specifically, the extraordinary life of one of our own former justices - Bertha Wilson - the first woman and first working-class immigrant appointed to the Supreme Court of Canada. We are fortunate that the famously private and reticent justice consented to a series of taped interviews about her life and work, as the product is the elegantly written and impeccably researched biography, Judging Bertha Wilson: Law as Large as Life by Ellen Anderson.

Born in 1923, Bertha Wernham grew up in the industrial town of Kirkaldy, Scotland, and attended the University of Aberdeen before immigrating to Canada with her husband John Wilson, a Presbyterian minister. Settling in Halifax, she discharged her responsibilities as “clergyman’s wife” with a characteristic sense of obligation, though her natural curiosity and burgeoning intellect soon brought her to enrol in Dalhousie Law School. Dean Horace Read, wary of admitting a thirty-one year old woman with an expressed intention to never practice, notably quipped upon meeting Wilson, “We have no room for dilettantes. Why don’t you just go home and take up crocheting?”

And so began the distinguished legal career of Dalhousie’s most famous alumna, though Wilson’s year in private practice, appointments to the Ontario Court of Appeal, Supreme Court of Canada, and at the helm of the CBA’s Gender Equality Study and Royal Commission on Aboriginal Peoples were indubitably informed by her experiences before. Stringing her inauspicious upbringing and unconventional education through every phase, Anderson paints a cohesive portrait of one of Canada’s most dynamic lives.

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2003: Severe Acute Respiratory Syndrome outbreak (SARS)
2004: Avian Influenza in poultry (H5N1)
2007: Equine Flu
2009: Human Swine Flu (H1N1)

Throughout the years, we have had a number of health concerns that have come out in the open ranging from SARS to Avian Influenza and now “Swine Flu”. Considering this increase in public health concerns, a quick look at the application of the Canadian Charter in the health care context might be appropriate in the circumstances.

Health concerns are paramount in a world where infectious diseases have becomes the norm, rather than an exception. Face-masks have made their way into most households. A mere cough gets the most unexpected reaction of horror, disgust and fear as bystanders inch their way away from the offender. The world is slowly transforming into a germophobe’s ultimate nightmare where proximity to any surface without the protection of latex gloves may lead to severe, negative health repercussions.

In this horror-laden world, it may be useful to consider the impact of Charter and common law decisions in the health care context. It might be advantageous to understand how the Charter applies to health care - and more specifically, whether a claim for health care can be brought under section 7 of the Charter that guarantees life, liberty or security of the person or whether access to health care is guaranteed under section 15(1) of the Charter.

We will begin this analysis by considering the extent to which the Charter applies to the decisions and actions of the various health care organizations in the health care system. The Supreme Court addressed this issue in Eldridge v. B.C. (Attorney General), [1997] 3 S.C.R. 624 and set out the limits and requirements for cases dealing with health care.

Prior to Eldridge
The application of the Charter is defined in section 32(1). Before Eldridge, the application of the Charter was interpreted in two defining cases – R.W.D.S.U. v Dolphin Delivery, [1986] 2 S.C.R. 573, in 1986 and Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483 in 1990.

The SCC in Dolphin Delivery determined that the Charter applied to “government” only and not private entities. The Court concluded that the Charter did not apply to common law rules unless government was relying upon them. In 1990, Stoffman addressed the application of the Charter specifically for cases relating to the health care system. Stoffman considered whether the Charter applied to the Vancouver General Hospital’s mandatory retirement policy. Justice LaForest, for the majority,  held that even though the government of B.C. retained control over the hospital, it did not regulate routine administrative policies. As such, the hospital did not fall within the definition of “government” as specified in section 32(1).

Eldridge as precedent
This decision was further reiterated and clarified in the 1997 decision of Eldridge. Justice LaForest followed his previous reasoning in Stoffman and concluded that hospitals were private entities and not government. Because of this private status, the Charter did not generally apply to them because of  section 32(1).  That said, the Court clarified this interpretation by stating that hospitals would be subject to the Charter to the extent that they implemented a specific government program, for example by providing publicly funded health care services.

Implications for plaintiffs today
The Eldridge decision was an extremely significant one as it clearly defined the applicability of the Charter to Canadian hospitals.  The Stoffman decision left hospitals impervious to any Charter claims as private entities instead of government. However, the Eldridge decision resolved this anomaly and expanded section 32(1) to include private entities that were engaged in planning and delivery of government funded health care services. Additionally, the SCC concluded that the Charter is applicable to physicians and other health care providers whose services are subsidized through health insurance legislation as they are acting as “agents” for the government.

Canada had a mixed health system where the line between private and public has blurred. However, the publicly funded health care system has become a central part of the government program and a crucial characteristic of Canadian society. Because of its central nature, it is essential that such a system should be subject to the Charter. The SCC recognizes this in Eldridge by expanding the scope of “government” as defined in section 32(1) of the Charter.

Obstacles for those contemplating an action after contracting the “Swine Flu”
Although Eldridge can be used as precedent to start an action against Ontario and the hospitals for violating section 7 of the Charter, such an action will most likely not succeed based on previous claims.

The Ontario Court of Appeal recently dismissed the claim by the nurses and individuals who contracted SARS, stating that there were no legal grounds to proceed. The court concluded that even though Ontario is obliged to protect the public from the spread of communicable diseases, they cannot be held financial responsible to those people, both nurses and the general public, for contracting the disease.

Notwithstanding any previous decision, potential lawsuits remain an open question and as always we adopt a “wait-and-see” approach.